ENDitorial: CoE – Content Regulation: Break On Through; IPR: It's Tricky

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The 8th meeting of the Council of Europe (CoE) group of specialists on Human
Rights in the Information Society (MC-S-IS) was held in Strasbourg on 29-30
October 2007. It was mainly dedicated to discussing draft documents on
technical measures and their impact on human rights and particularly freedom
of expression. Two areas were more specifically addressed: content
regulation and intellectual property.

In its position of independent NGO observer to the CoE MC-S-IS, EDRI voices
its concerns when needed, including loudly by running campaigns, like the
recent one against a new Recommendation failing to uphold online freedom of
expression (Rec(2007)11). In this campaign, EDRI statement was endorsed by
34 national and international NGOs, including major freedom of expression,
freedom of the press, and human rights groups. However, EDRI is also fully
playing its role when promoting CoE outcomes likely to become important
tools for online freedom of expression defenders.

This is likely to happen very soon, provided that the draft ‘Recommendation
on measures to promote the respect for freedom of expression and information
as regards technical filtering measures’ and its accompanying draft “Report
on the use and impact of technical filtering measures for various types of
content in the online environment, with particular regard to Article 10 of
the European Convention on Human Rights” are adopted without important
modifications by the Steering Committee on the Media and New Communication
Services (CDMC) during its next meeting, and then by the CoE Committee of
ministers.

Both draft documents have been adopted during this MC-S-IS meeting. Members
and observers of the MC-S-IS group discussed the documents prepared by
Austria (MC-S-IS group vice-chair) and Armenia representatives, with the
help of the MC-S-IS Secretariat as well as of EDRI as observer. EDRI had the
opportunity to suggest many changes to both documents before their
submission to the whole group, and almost all these changes were included.

As many members of the group acknowledged, this Recommendation would be the
first important document breaking off the usual national, European and
international rhetoric of “technical filtering panacea” to fight illegal or
harmful content, in that it reintroduces the need to respect
human rights standards, first and foremost freedom of expression, but also
the right to privacy and other provisions of the European Convention of
Human Rights, including the rule of law principle. One member, namely
Norway, insisted though on the “impression the documents gave that
governments wont be allowed to any content filtering of blocking” anymore,
but it was rather isolated in such position.

The final draft document recommends that CoE member States “take measures to
promote the respect for freedom of expression and information as regards
technical filtering measures in line with provided guidelines”, as well as
“to bring these guidelines to the attention of all relevant private and
public sector stakeholders, in particular those who design, activate, use
and monitor technical filtering measures, and civil society, so that they
can contribute to their implementation.”

The draft Recommendation sets out detailed guidelines on: (I) “Using and
controlling filters in order to fully exercise and enjoy the right to
freedom of expression and information”, (II) “Appropriate filtering for
children and young people”, and (III) “Use and application of filtering
systems by State actors and the private sector”.

Another set of draft documents discussed at the same meeting was far from
receiving the same welcome, and it is not even likely to be adopted soon, if
at all. These documents are a draft “Recommendation on freedom of expression
and information and intellectual property rights in the new information and
communications environment” and its accompanying draft report on emerging
issues and trends in this context. The former was prepared by Switzerland
representative (MC-S-IS group chair) with the help of the Secretariat, and
the latter by the Secretariat and an informal working group made up of
representatives from France, Malta, Norway and INSAFE/European SchoolNet
observer representative.

While EDRI has not taken part in the preparation of these documents, it
found the drafts submitted for discussion a very positive achievement, and
expressed this position to the MC-S-IS group. However, the documents
generated an incredibly heated discussion, to the extent that some member
States showed a truly blocking attitude, even trying to claim that these
issues were out of the MC-S-IS group mandate, and, as if this was not
enough, to question the ability of its members and observers to discuss
issues dealing with intellectual property.

The strongest opponent to the documents was undoubtedly Norway, followed,
though less aggressively, by Finland, France and Portugal. ENPA (European
Newspaper Publishers’ Association) joined this opponent group as observer.
In addition to Switzerland, Austria and Armenia advocated in favour of the
draft documents, joined by EDRI, INSAFE/European SchoolNet and EBU (European
Broadcasting Union) as observers.

As the MC-S-IS group chair and vice-chair clarified, these documents
specifically address the protection of freedom of expression when using
intellectual property digital rights management techniques, which is clearly
within the group mandate, especially since a former expert group on
copyright issues does not exist anymore, its mandate having been transferred to the
MC-S-IS group. It was also reminded that it is the responsibility of the
MC-S-IS group to address and explore any issue within its mandate, even
controversial ones.

Main contentious points relate to guidelines in view of promoting access to
knowledge and education, of assisting IP right holders to self-determine how
their protected works can be accessed, and of promoting innovative systems
of remuneration for right holders who want to allow their protected works to
be used and/or reused.

The issue should be again on the agenda of next MC-S-IS meetings in 2008. In
the mean time, the MC-S-IS group will elaborate a synthesis of main points
of disagreement and report to the CDMC. One of the decisions to be made is
whether this activity would lead to a CoE Recommendation or to other, even
less normative, kind of document or action (some even suggested yet another
conference). In this latter case, EDRI and many other NGOs would likely have
to consider this as surrender to main lobbies.

In addition to these two main discussions, the MC-S-IS group had a quick
preliminary exchange of views regarding two possible future documents on
understanding the freedom of expression and information with regard to the
work of Internet service providers on the one hand, and of online game
providers on the other hand. A third document, not yet drafted, is also
foreseen on the work of social networking sites operators. A short
discussion was held on their relevance, even though these documents would be
a set of guidelines for concerned actors rather than normative documents
intended to State members. The group agreed that, more generally speaking,
web 2.0 services should be addressed in relation with the respect for human
rights and human dignity. An informal working group will start preparing
inputs on this issue, participants being Switzerland and France, with EDRI
as observer.

Moreover, the group considered the establishment of a “standard-setting
instrument which promotes a coherent pan-European level of protection for
children from harmful content when using new communication technologies and
services and the Internet, while ensuring freedom of expression and the free
flow of information”. The general mood inclined towards the lack of
relevance of such activity, especially after Austria, Armenia, and EDRI as
observer strongly warned of the difficulty, if not the impossibility,
to agree on a general definition of harmful content, taking into account the
diversity of cultures, values and sensibilities at the pan-European level.

Finally, the group had to consider possible new work topics, in view of the
renewal of MC-S-IS terms of reference and of the suggestion of themes for
the 1st European Ministerial Conference on media and new communication
services, to be held in Reykjavik in May 2009 as decided by the CDMC 5th
meeting. In addition to the respect for human rights and human dignity in
web2.0 that was already decided, search engines as well as the respect for
privacy have been suggested by EDRI. Next regular MC-S-IS meeting is
scheduled in late March 2008.

CoE MC-S-IS public website
http://www.coe.int/t/e/human_rights/media/1_intergovernmental_co-operation/MC-S-IS

EDRI-gram: CoE to address the impact of technical measures on human rights
(12.04.2007)
http://www.edri.org/edrigram/number5.7/coe-human-rights

EDRI campaign on new CoE recommendation failing to uphold online freedom of
expression (10.10.2007)
http://www.edri.org/coerec200711-signatories

CDMC 5th meeting report (12.09.2007)
http://www.coe.int/t/e/human_rights/media/1_intergovernmental_co%2Doperation/CDMC

(Contribution by Meryem Marzouki, EDRI member IRIS – France)